Bernie O'Neil - 20 April 2021
Bernie O'Neil presented to Council as the Co-Convenor of A Better Eurobodalla, at the Public Access Session on 20 April 2021.
A Better Eurobodalla (ABE) presentation to the Eurobodalla Shire Council Public Access session on Tuesday 20 April 2021
Good morning and thank you for the opportunity to address Council. I am presenting as Co-Convenor of A Better Eurobodalla (ABE), a community forum dedicated to having open and inclusive government in our region.
ABE has already presented to Council on the need for genuine community consultation, as well as the importance of obtaining and taking account of relevant expert advice before making decisions. This presentation focuses on two key principles that ABE believes are important for inclusive and accountable government – transparency and open communication.
ABE has reviewed Council documents relating to these important aspects of good governance, the most relevant being Eurobodalla Shire Council’s Agency Information Guide (2019) which is a requirement under the Government Information (Public Access) Act (2009). It outlines how Council will engage with the public and how the public can participate in Council functions, stating that: ‘We want to help create an engaged community that works together to achieve common goals, where thoughts and ideas are valued and where community members are empowered with knowledge and have the opportunity to participate’.
However, ABE’s community engagement is telling us that Council is not living up to these commitments in the (now outdated) Agency Information Guide and in some cases it acts in direct contravention to them. This has given rise to what the community perceives as a culture of secrecy within Council which prevents not only the public, but also community members of Council committees and even councillors, from knowing the detail of how and why decisions are made and by whom.
Our discussions with the community have provided the following examples:
1. Tendering processes
Council’s financial management practices such as tendering processes where ‘commercial-in-confidence’ provisions are routinely used to conceal costs and expenditure from the public, and sometimes councillors. As ABE noted in an earlier presentation, even the independent Audit, Risk and Improvement Committee of Council established under the Local Government Act to review the risks, controls and finances surrounding major projects is not always provided with sufficient information to allow them properly evaluate Council’s financial decisions. This was demonstrated in relation to the Bateman’s Bay Regional Arts, Aquatic and Leisure Centre where the Audit, Risk and Improvement Committee was not provided with the construction tender and therefore could not advise councillors before they voted to approve the total budget for the project. When councillors sought guidance from the Committee prior to voting on the project, the General Manager advised that the Committee could not have access to the construction tender because it was commercial-in-confidence. This was based on a dubious interpretation of the Local Government Act and despite the fact that members of the Committee are bound by the same strict confidentiality clauses as council staff and councillors.
Often the outcomes of tender processes are not publicly announced and nor do they always appear on Council’s contract register. When they do, they cannot always be relied upon to be accurate. While it is a mandatory requirement under the GIPA Act that council keep a public register of contracts valued at $150,000 and over, Council has overlooked this requirement on several occasions. This was the case in relation to Council’s multi-million dollar Technology One contract for a corporate business system which commenced in June 2016 with a completion date of September 2018. By the end of September 2020 over $7 million had been spent and the estimated completion date had been pushed back to December 2021 with a final cost of close to $10 million. None of this was recorded on Council’s contract register at the time, so there was much community speculation about how much this whole project was costing ratepayers. It was not until the issue was raised by a Councillor at the end of 2020 that the cost and details of the contract were revealed and the contract register was finally updated.
2. Council meetings
Under the section on public participation in their Agency Information Guide, Council claims to encourage community members to participate in the exercise of Council functions and policy formulation by coming to, or watching webcasts of, Council meetings; engaging with Council at Public Access meetings (like this one) and applying for membership of Council committees or addressing committee meetings.
However, Council’s record in relation to meetings does not meet this standard. Meetings are held during the day when it is difficult for residents who work to attend. This contrasts with other councils who hold their meetings in the evening, making them accessible to a broader section of the community. While Eurobodalla Council meetings are webcast, this does not allow community members who cannot attend live meetings to address Council. Council’s Public Access sessions are also held during the day which limits participation by working members of the community and the story is the same for Council committees.
The frequency of Council meetings has also limited public participation. Following the disastrous Black Summer bushfires of 2019-20 Eurobodalla Council did not meet until 11th February 2020, some 3 weeks after the bushfire disaster was over and nearly 2 months after their last ordinary meeting in early December 2019. In contrast, both neighbouring Shoalhaven and Bega Valley Shires held extraordinary Council meetings in January to deal with the bushfire disaster and returned to their regular schedule of Council meetings much sooner. During the onset of COVID-19 when bushfire recovery issues were still of critical importance, Eurobodalla Council abandoned its meeting schedule for nearly 2 months between 7 April and 26 May 2020 despite having access to technology that would have allowed them to continue meeting remotely. Council has since embraced this technology and Council meetings have been by Zoom link until very recently. However, Zoom access to Council meetings is complex to organise for most people and does not effectively facilitate community participation. Public Access meetings continue to be via Zoom for no apparent reason. In addition, the frequency of Public Access sessions has been reduced from fortnightly to monthly and they are no longer broadcast and available to the broader community. This does not live up to Council’s statements in their Agency Information Guide about encouraging community participation.
3. Confidentiality provisions
Council’s Agency Information Guide states that ‘elected councillors represent the interests of residents and ratepayers. They provide community leadership and guidance [and] channel communication between the community and Council’. However, in practice, the application of confidentiality clauses across a broad range of council business often prevents elected representatives from consulting their constituents on important matters that will affect them.
These same confidentiality provisions are also applied to Council advisory committees whose members are unable to share the most basic information with the communities they represent without the threat of legal action. A key function of advisory committees is for information regarding Council matters to be made available for public scrutiny, consideration and comment. The current confidentiality arrangements imposed on committee members by Council effectively prevents any information about related Council business being shared with the broader community.
A number of other instances where Council has failed to communicate openly and operate transparently were raised by the community. These include the extended time that Council’s DA tracker was offline during 2019 which prevented the community from knowing what planning matters were before Council and the process of leasing the Bateman’s Bay Community Centre.
So ABE believes it is time that Council reviews the way it operates with regard to its own policies and guidelines if it genuinely wants to engage the community and encourage them to participate in Council business.
A Better Eurobodalla
I note your comments regarding community engagement. It should be noted that community consultation is not a decision-making process but a process to help form a decision. Community views are one form of information that Council needs to consider in making a decision, for example it also needs to consider relevant expert advice.
Council agrees with your comments that it is important to obtain and take account of expert advice. An example of Council obtaining and taking account of expert advice is in regards the Batemans Bay Regional Aquatic Arts and Leisure Centre. Council obtained independent professional advice on the appropriate size and type of facilities. The independent expert advice recommended a 25m pool not a 50m pool, supported by a number of other aquatic features to best meet the needs of the community.
In your presentation you stated that at times costs and expenditure are concealed from Councillors. This is not correct. All decisions on the awarding of tenders must be made by the Council (Councillors) in full knowledge of the tender price (cost). Councillors are briefed on each tender and provided with the details of the tender price and decision prior to making this decision.
With regards to the Audit Risk and Improvement Committee (ARIC) and the Batemans Bay Regional Arts Aquatic Leisure Centre tender. Under the Terms of Reference (TOR) for the Audit Risk and Improvement Committee, the ARIC is advisory to Council and the General Manager and has no executive powers. Therefore, the ARIC has no role in assessing or awarding tenders. This is a role for the Council. It should be noted that the Councillors and ARIC had received multiple briefings on the project, including the estimate financials in the business cases prepared by Otium Planning Group. Consultants from Otium briefed Councillors and ARIC on the revenues and expenditure expected over a ten-year period and a comprehensive briefing on the financials, including the long-term costs and capital costs were also provided. ARIC has not raised any concerns in regard to this project.
The Tech One contract (‘the Contract’) commenced on 30 September 2016, initially for a period of two years. The contract was subsequently extended, most recently by Contract Variation 119 in June 2019, with a current project end date of December 2021.
Council has dealt with a concern raised by a community member in December 2020 regarding the inclusion of the Contract in the contract register. It was found that the Contract had not been included on the contract register following its extension in June 2019. As soon as this non-compliance was identified, it was immediately rectified by the Contract being included in the contract register.
The reason for non-compliance in this instance was that the officer responsible for updating the contract register had not been advised of the Contract’s extension in June 2019.
With regard to your comments about timing and frequency of Council meetings. It should be noted that under the Local Government Act 1993, Council is required to meet 10 times per year. In any year, Council meets between 16 -18 times per year.
During 2013 and 2014, Council trialled late afternoon/evening meetings. At that time, the trial highlighted that the late afternoon/evening meetings do not increase attendance or participation from the community in Council meetings. Night meetings also made it difficult for people who would prefer not to drive often long distances in the dark.
I note your comments regarding confidentiality. All Councillors in NSW are bound by the Local Government Act 1993 and Council’s Code of Conduct. All Council Advisory Committees are required to sign individual confidentiality agreements. These agreements are consistent with Council’s Code of Conduct.
With regards to your comments about Council’s DA tracker, I confirm that this system was unavailable to the community from December 2018 to March 2019 during Council’s
transition to a new tracking system. Details were provided on the Council’s website for residents to contact Council’s development help desk for development enquiries. During this time, Council received a significant increase in enquiries.